David Kessler - No Way Out

Yes, there was still injustice in America. But there was also resistance to that injustice. Yes, there was still suffering. But there was also hope. Yes there were the lingering after-effects of past injustice. But those lingering after effects would be swept away too, as long as good people kept trying and never gave up working together.

And it came to this: after seeking the truth in a foreign desert — a truth that almost eluded him — Elias Claymore saw the light of day and found happiness where he had started out, in his own backyard.

So at the end of three lonely years in exile, the prophet of conflict and bitterness finally returned home.

“Hear ye! Hear ye! Hear ye! The Superior Court of the State of California, Alameda County, is now in session, the Honorable Justice Wagner presiding. All persons having business before the Court come forward and give your attendance and you shall be heard. God save this Honorable Court and the United States of America.”

Justice Ellen Wagner — a senior judge of the California Superior Court — took her seat in Court Number 7 of the Rene C. Davidson Courthouse in Oakland and the others followed suit. In her sixties, she was a striking, bespectacled African-American woman who projected dignity and gravitas from every pore. A veteran of the civil rights struggle, she had, in her youth, endured threats and even beatings as a freedom rider in the nineteen sixties. Along with a quarter of a million others, she had stood on the National Mall when Martin Luther King made his immortal “I have a dream” speech.

She had always claimed that her education began with the 1954 decision in the case of Brown versus Board of Education Topeka in which the Supreme Court ruled that racial segregation in publicly funded education was unconstitutional. But it was not the education offered by the system in light of the ruling that she was referring to. It was the education provided by the ruling itself. As a precocious eleven-year-old she had followed the case closely, encouraged by her aunt, who taught her to read. She had sat on her aunt’s porch, enthralled, as her aunt explained the more difficult words of the eloquent arguments used by civil rights lawyer Thurgood Marshall.

Thirteen years later, Marshall was appointed by President Lyndon Johnson to serve as the first African-American justice on the highest Court in the land. One year after that, Ellen Wagner fulfilled her own childhood dream by winning a coveted place to clerk for Marshall at the Supreme Court.

A panel of 150 veniremen was assembled in about twelve rows, sitting there looking nervous. This was quite a large panel, even for a felony case. But the judge was mindful of the fact that this was a high-profile case involving a popular and controversial public figure, and it was necessary to ensure that there was a large enough panel to allow for the many challenges for cause that were expected.

The veniremen had been shown a video explaining to them all about their duties as jurors and now after a day and a half of waiting around they had finally been brought into a courtroom. The question they had all been wondering about was whether they would be selected for the Claymore case. Not all of them wanted to. They knew that it was going to be a long case and they had jobs to do and lives to lead.

But some of them did want to be on the jury, for various reasons. Serving on a jury in a high profile case could be a passport to easy money. It was not unusual these days for jurors in high-profile cases to sell their stories to the press. Some of them “knew” that Claymore was guilty and wanted to “nail that bastard”. Others “knew” that he was the victim of a white man’s witch-hunt and wanted to save him from the clutches of a racist legal system. Yet others just wanted to tell their friends that they were on the Claymore trial jury.

Sarah Jensen was still on the case, in the prosecutor’s first seat. But now, she was assisted by Nick Sinclair, a short-bearded African-American lawyer in his mid-thirties, assigned to the case by the Alameda DA. The choice was not accidental. The DA wanted to show that this was a crime against women, but also to reassure society that it was not a race issue: hence the combination of Sarah Johnson from Ventura where the alleged crime was committed and Nick Sinclair from Oakland to create the right balance in the jury’s mind.

At the defense table, Claymore sat uncomfortably. Alex — a quintessential trial lawyer — was very much in his element. He leaned over and whispered a quiet last minute word to Andi.

“I don’t know this judge, but I she looks kind of tough, so I think we should set the program to assume that she won’t allow any of our challenges for cause.”

They were using a piece of software called JuryWizard . It allowed them to grade jurors according to how good or bad they were for their case and to prioritize who to cut or challenge without cause. If the judge allowed all or most of their challenges for cause, then they could use their “cuts” quite liberally to clear out the remainder of the undesirables. But if the judge was less accommodating, the peremptories had to be used more sparingly, to screen out the worst of the ones they didn’t want. They could set the software to allow for what percentage of the challenges for cause the judge would allow and it would flag and prioritise the ones they should cut.

The plan was that Alex would ask the questions and Andi would input the data.

“Something’s bothering me about this panel,” said Andi, her eyes glued to the prospective jurors.

“What?”

“There are hardly any blacks on it.”

“I know,” said Alex, “But we’ve agreed that it’s not necessarily a disadvantage.”

“Yes but it doesn’t make sense.”

“I guess it’s because they’re under-represented on the voting register. A lot of blacks still don’t register to vote.”

“You’re living in the past Alex. This is the Obama age. Besides, the jury’s also drawn from driver’s license registration.”

Alex waved his hand dismissively.

“It could just be a statistical blip. Let’s not make a mountain out of a hill of beans. There’s nothing we can do about it now. We’ve got bigger things to think about.”

“Is the prosecution ready?” asked the judge

“Yes Your Honor,” said Sarah Jensen. “I appear on behalf of the People. Mr. Nicholas Sinclair of the Alameda County DA’s office is my co-counsel.”

Alex rose.

“Your Honor I appear on behalf of the defense. My co-counsel is Miss Andromeda Phoenix.”

He sat down.

“The People may proceed.”

“Thank you Your Honor.”

Suddenly — and quite out of the blue — Andi rose, leaving Alex looking surprised if not downright terrified.

“Your Honor, may it please the court, before we begin voir dire, I wish to lodge an objection to the panel.”

They all looked at her in confusion, including Alex.

“The entire panel?” asked Justice Wagner, with measured composure.

“Yes Your Honor.”

“Your grounds Miss Phoenix?” asked the judge, her curiosity aroused.

“Fourteenth Amendment, Your Honor, systematic exclusion of jurors on grounds of race in clear violation of the principles of Batson versus Kentucky , 476 U.S. 79, 1986.”

Justice Wagner peered down her varifocals at Andi, somewhat bemused. Alex, in contrast, was struggling, not to show his irritation. The case Andi had cited involved the prosecutor’s abuse of peremptory challenges to systematically exclude blacks from the jury.

“I’m not quite sure I’m following you Miss Phoenix. The jury hasn’t been empanelled yet. The voir dire hasn’t even started.”